STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5365

August 28, 1978

LICENSES & PERMITS:

Child care and adult foster care facilities

STATE FIRE MARSHAL:

Jurisdiction over child care and adult foster care facilities

DEPARTMENT OF SOCIAL SERVICES:

Licensing of child care and adult foster care facilities

ADULT CARE FACILITIES:

Licensing

CHILD CARE FACILITIES:

Licensing

STATE:

Preemption of local regulations

Although the approval of the State Fire Marshal is not a precondition to the issuance of a license to operate an adult foster care facility, the Department of Social Services must use the Fire Marshal's rules in setting standards pertaining to fire safety. In addition, the Fire Marshal may compel compliance with the rules of the Fire Safety Board after issuance of the license.

The legislature has provided that, in the licensing of adult foster care facilities, local building code regulations are preempted by state law.

The approval of the State Fire Marshal is not required as a condition precedent to the licensing of a child care facility although the Fire Marshal may compel compliance with the rules of the Fire Safety Board after issuance of a license by the Department of Social Services.

Licensed child care centers must comply with local building code requirements.

Honorable David C. Hollister

Honorable Thomas H. Brown

Honorable Claude A. Trim

Honorable Melvin Larsen

State Representatives

The Capitol Building

Lansing, Michigan 48909

John T. Dempsey

Director

Department of Social Services

300 S. Capitol Avenue

Lansing, Michigan

You have requested my opinion on the following questions relating to adult foster care and child care facilities:

Your questions will be responded to seriatim.

Your first question is whether the approval of the State Fire Marshal is a condition precedent to the issuance of a license by the Department of Social Services for the operation of an adult foster care facility.

The licensing and regulation of adult foster care facilities is governed by the provisions of 1972 PA 287, as amended; MCLA 331.681 et seq; MSA 16.610(1) et seq. 1972 PA 287, supra, Sec. 3, sets forth the powers and duties of the director of the state department of social services with respect to these facilities:

The above-noted provision makes clear that the authority to issue adult foster care licenses rests with the director of social services and that, although the facility must comply with the fire safety rules of the State Fire Marshal, the approval of the fire marshal is not a condition precedent to the exercise of that authority. It must be noted, however, that the director is required to promulgate rules establishing, among other things, building and equipment standards 'after consultation with . . . the state fire marshal . . .' The obligation imposed on the director of social services by the above statutory provision to consult with the state fire marshal in the promulgation of rules indicates that the legislature intended the director to utilize the fire marshal's special expertise in setting standards pertaining to fire safety. In harmony with this interpretation, the Fire Prevention Act, 1915 PA 178, Sec. 3c(1); MCLA 29.3c(1); MSA 4.559(3c) directs that the state fire safety board make and adopt rules pertaining to fire safety requirements for all institutional facilities:

Rules of statutory construction require that statutes be construed in a reasonable manner and, where two statutes encompass the same general subject, they should be construed as complementary. See Rockwell v Crestwood School District Board of Education, 393 Mich 616, 652; 227 NW2d 736 (1975). Applying this rule of statutory construction to the question at issue, it is clear that 1972 PA 287, Sec. 3, supra, should be interpreted in pari materia with the Fire Prevention Act, Sec. 3c(1), supra. Therefore, the fire safety standards of the state fire marshal which pertain to institutional occupancies must be incorporated by the Department of Social Services into its own rules governing adult foster care facilities promulated under 1972 PA 287 Sec. 3, supra.

In summary, while the approval of the fire marshal is not a precondition to the issuance of a license, the Department of Social Services must nevertheless use the fire marshal's rules in setting standards pertaining to fire safety. In addition, the fire marshal may compel compliance with the rules of the fire safety board after the issuance of the license.

Your second question is whether Section 12 of the Adult Foster Care Licensing Act; 1972 PA 287; Sec. 13, MCLA 331.693; MSA 16.610(13) precludes local building code authorities from enforcing locally adopted construction codes with respect to licensed Adult Foster Care Facilities.

Local governmental units are expressly precluded from playing a role in the licensing of adult foster care facilities by 1972 PA 287, Sec. 13, supra, which provides:

The doctrine of state pre-emption of local ordinances was examined by the Supreme Court in People v Llewellyn, 401 Mich 314, 325; 257 NW2d 902 (1977). In Llewellyn, although there was no specific statement of pre-emption such as that contained in 1972 PA 287, Sec. 3, supra, the Court concluded that:

In the instant case, the enforcement of local regulations which indirectly affect adult foster care facilities may result in the exclusion of those facilities from a community even though the facilities meet all the requirements for operation established by the state. Thus, the Legislature has provided that local regulations of adult foster care facilities are pre-empted.

Your third question is whether the approval of the State Fire Marshal is a condition precedent to the issuance of a license by the Department of Social Services for the operation of a child care facility.

The licensing and regulation of child care facilities is governed by the provisions of 1973 PA 116, as amended; MCLA 722.111 et seq; MSA 25.358(11) et seq. 1973 PA 116, Sec. 3, supra, generally sets forth the powers and duties of the Department of Social Services with respect to the inspection and licensing of these facilities:

As can be seen, the Act specifically requires the Department of Social Services to assume responsibility for the licensing of child care facilities and provides for inspections by the State Fire Marshal only at department request. Therefore, the approval of the State Fire Marshal is not required by the Act as a condition precedent to the licensing of a child care facility, although the Fire Marshal may compel compliance with the rules of the Fire Safety Board after issuance of the license.

Your fourth question is whether the standards used by the Department of Social Services in determining whether a license for the operation of a child care center should be awarded, pre-empt the field of regulation so as to exclude the application of locally adopted building codes.

With respect to whether a child care center must comply with local building codes, the administrative rules currently governing such centers provides, at 1965 AACS R 400.125(9) that:

Thus, the rules governing child care centers specifically direct that they conform to the requirement of local building codes.

By your fifth question you have asked whether the authority of the State Fire Marshal preempts that of the Michigan Construction Code in the approval of construction plans.

Local building code enforcing agencies derive their authority from the State Construction Code Act of 1972, 1972 PA 230, MCLA 125.1501 et seq; MSA 5.2949(1) et seq.

Pursuant to the provisions of the Construction Code Act, local authorities may elect to adopt and enforce a nationally-recognized model building code or may enforce the provisions of the State Construction Code as promulgated by the State Construction Code Commission. In either case, it is clear that fire safety requirements are among the areas subject to regulation. See Sec. 4(1) of the Construction Code Act.

Therefore, since as noted in my response to your fourth question, the rules governing child care centers specifically direct that they conform to the requirement of local building codes, it is clear that a child care center must comply with both the local building code and the rules of the Fire Safety Board. If, for example, a local construction code requires a child care center to have a fire sprinkler system and the Fire Marshal's rules do not require a fire sprinkler but do require a fire detection system, it is necessary for the child care center to have a fire sprinkler system and a fire detection system.

Some attention must also be given to several recent amendments to the zoning acts. 1977 PA 28, MCLA 125.583b; MSA 5.2933(2) (City and Village Zoning), 1977 PA 29, MCLA 125.286a; MSA 5.2963(16a) (Township Zoning), and 1977 PA 30, MCLA 125.216a; MSA 5.2961(16a) (County Zoning) make it clear that state licensed residential facilities (adult foster care facilities and child care facilities) which house six or less persons may not be excluded from residential zones. Facilities which house more than six persons, however, may be excluded from residential zones.

Frank J. Kelley